On Application nor Behearing.
Manning, O. J.It is rightly remarked by the counsel for the defendant, in his brief supporting the application for a rehearing: “ The great *625underlying principle in all contested election cases is to ascertain the will of the majority.” The problem is to secure first to the voter a free and untrammeled vote; and, secondly, a correct record and return of the vote, and that in all cases, it is incumbent on the contestant to shew that the acts of which he complains changed the result.
And we will add, if the acts of which a contestant complains do not change the result, courts will not intervene, though the conduct of the one or the other may be tainted by fraud, or vitiated by violence. Eor of what concern is it to judicial tribunals to learn what bad and illegal acts either candidate may have been guilty of, if one received so large a majority over the other that he is elected, notwithstanding the deduction from his poll of all the votes that should not have been received nor counted.
But when the case is otherwise — when the object and purpose of the officials who have the machinery of elections in charge is shown by testimony to have been, not the ascertainment of the will of the majority, but the perversion of the expression of that will; not a correct record and return of the vote, but such a return as accomplishes a predetermined result; not an untrammeled vote, but so to trammel it by cunning devices that the suffragan has been deceived or misled — then it is the highest office and the most imperative duty of a court to vindicate the purity and inviolability of the ballot, and to take care that the republic, whose corner-stone is the vote of the citizen, shall receive no harm.
Eor the fundamental principle of every representative government is that it is not the return, but the election, that entitles a party to an office. Hence it has been uniformly held that the official return of an election is only prima facie evidence of its -legality and correctness, and that a court can go behind it to ascertain the true state of the vote. If this were not so, why should the intricate forms for registration be prescribed, or why the necessity of the voter personally offering his vote, or offering it at all, if a power rested anywhere to disregard every thing that had been done at the ballot-box, and elect at the returning-board. The act of casting a vote is not to the citizen an empty form. It is the lever by which the majority raises itself to the summit of the government, and there controls, orders, executes.
Ledet, as supervisor of registration for Lafourche parish, made return of the election, and impeached the truth of his return by his testimony on the trial. We are reminded, in the brief for the rehearing, of Lord Mansfield’s declaration, that “ it is of consequence to mankind that no man shall hang out false colors to deceive them by first affixing his signature to a paper, and afterward giving his testimony to invalidate it.”
But that great jurist would not have felt himself precluded, by the enunciation of this wise maxim, from receiving the testimony of a *626criminal who had become the State’s witness against his fellows. And in a civil action where the public interests are involved, as in a contested election suit, more than the interests of the individuals who are parties thereto, it is no infringement of that principle to hear from him who hung out the false colors the story of the manner in which they were fashioned, and his intent in displaying them.
Nor is it Ledet alone who details the circumstances preceding and attending this election. Other witnesses, who are reputable citizens, inform us that when notice was given of the election that was to be held, no indication •was made of the places where it would be held, nor was this necessary information supplied publicly until twenty-four hours before the time for opening the polls. This delay or omission might have been attributed perhaps to negligence or forgetfulness, but for the fact, of which the evidence leaves no room for doubt, that information of the location of the polling-places was early given to one of the political parties, and was withheld from the other. The record shows that on the sixth of November the supervisor, Ledet, published for the first time what he termed “ a correct revised list of polling-places to be opened on the seventh throughout the parish for the convenience of the electors of Lafourche.”
The acts complained of by the plaintiff, and which changed the result, are reviewed in extenso in the opinion read by my brother Egan, and we are constrained to say there is too apparent to be unobserved or disregarded a design to thwart rather than promote a fair expression of the popular will by the officers who supervised this election. And this design, the first indication of which is afforded by the omission to give publicity to essential preliminaries, is developed more audaciously as the election-day approaches, and .culminates in excluding from the return two boxes which the judge of the lower court demonstrates should have been counted.
The return of the supervisor, or registrar, which excluded polls two' and ten, was thus:
supervisor’s return.
Wilton’s vote....................................................1872
Webre’s vote.....................................'...............1685-
Wilton’s majority............................................ 187
The district judge properly regarded this return as evidence only that prima facie it was correct, but admitted testimony and testified himself of matters, the object and effect of which was to impugn its correctness. He revised this official return, counted the votes of the two rejected polls, and also counted six votes for Webre which were not cast for him, but which the judge believed from the evidence would have *627been cast for him, if the voters had not been prevented from voting. He also deducted two votes from Wilton which he thought were improperly received.
DISTRICT JUDGE’S COUNT.
Wilton’s vote by supervisor’s return............................ 1872
Wilton’s vote at poll two....................................... 103
Wilton’s vote at poll ten........................................ 4Á
2019
Deduct votes.................................................. 2
2017
Webre’s vote by supervisor’s return........................1685
Webre’s vote at poll two................................... 139
Webre’s vote at poll ten.................................... 171
Add votes he would have received.....................;____ -6 — 2001
Wilton’s majority.......................................... 16
We do not count for Webre any vote that was not actually cast for him, nor do we reject any vote for Wilton that was'cast for him, except poll seventeen, and thirty-six votes which are part of a larger number that Webre alleged were improperly received. The lists, made part of his petition, comprised one hundred and nine names, of whom eleven voted on dead men’s papers, eight were convicts, four were persons who had removed from the parish, twenty-three voted twice on that day, and sixty-three voted on fraudulent certificates. The proof satisfied the lower court that two of this number should be rejected. It satisfies us that thirty-six of them should certainly be rejected.
THE CORRECT COUNT.
Webre’s vote per supervisor’s return............................ 1685
Webre’s vote at poll two....................................... 139‘
Webre’s vote at poll ten........................................ 171
1995
Wilton’s vote per supervisor’s return.......................1872
Wilton’s vote at poll two................................... 103
Wilton’s vote at poll ten................................... '4A
2019
Deduct poll seventeen..................................86
Deduct fraudulent votes...............................36— 122 — 1897
Webre’s majority.......................................... 98
The counsel for the defendant urges strenuously for a rehearing upon *628the erroneous rejection of poll seventeen. If we should concede to the defendant all the votes at that poll, and follow the example of the court a qua in counting those votes for Webre that he would have received at ward eight if an election had been held there, it would not change the result. The court below counted for Webre six votes, as if they had been given him at that poll, though in fact no poll was opened there. But if we are to take that poll into account at all, the evidence establishes a larger number. One set of witnesses say that Webre would have received forty or fifty votes at that poll if it had been opened. The other set say he would have received thirty or forty votes if it had been opened. Give him the smallest number, and count poll seventeen for his adversary:
Webre’s vote ut supra........................................... 1995
Add votes for box eight......................................... 30
2025
Wilton’s vote ut supra......................................1897
Add poll seventeen......................................... 86' - 1983
Webre’s majority........................................... 42
A careful review of our first opinion, and a re-examination of the record, leave upon our minds no doubt of the correctness of our former decree.
Rehearing refused.